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REASONS 

FOR 

CONCLUDING THAT THE ACT OF 1711, 

' REVERSING THE ATTAINDERS OF 

THE PERSONS CONVICTED OF WITCHCRAFT IN 
MASSACHUSETTS 



IN THE YEAR 1 692, 



BECAME A LAW. 



[200 copies printed.] 



1 



REASONS 



FOR 

CONCLUDING THAT THE ACT OF 1711, 

REVERSING THE ATTAINDERS OF 

THE PERSONS CONVICTED OF WITCHCRAFT IN 
MASSACHUSETTS 

IN THE YEAR 1 692, 

BECAME A LAW. 

BEING A REPLY TO 
SUPPLEMENTARY NOTES, ETC., BY GEORGE H. MOORE, LL.D. 

By ABNER CHENEY GOODELL, Jr. 



Reprinted from the Proceedings of the Massachusetts 
Historical Society. 



CAMBRIDGE : 
JOHN WILSON AND SON. 

Hmberstts Press, 

1884. 



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WITCHCRAFT IN MASSACHUSETTS. 



At a meeting of the Massachusetts Historical 
Society, held March 13, 1884, in reply to a communica- 
tion presented by Dr. George H. Moore, of New York, 
Mr. A. C. Goodell, Jr., made the following remarks: — 

As might have been expected, our learned and ingenious 
associate has given us all that can be shown or surmised in 
support of his original proposition, that the act of, 1711 never 
became a law ; and yet it seems to me that, fairly weighed 
against what has been shown on the other side, his arguments 
do not preponderate. 

Admiration of the skill with which he hurled some of his 
shafts, to say nothing of a sense of peril, quite distracted my 
attention from some other of his points, made with equal 
felicity of expression. In short, I feel overborne by the tor- 
rent of eloquence to which we have listened, and am con- 
scious of inability to rally, for the moment, so as to do justice 
to him or myself. 

But let us glance at the issue as it stands. To remove a 
doubt never entertained until Dr. Moore denied the existence 
of the act in question, but which, starting from such a source, 
merits the most careful consideration, I have shown, first, 
from the journals of the Governor and Council, commonly 
called the " General Court Records," an entry of the passage 
of the bill in question, to be enacted ; second, I have referred 
to a contemporaneous copy, in the handwriting of the Secretary 
of the Province, filed in the office of the Clerk of the Courts, at 
Salem, where it has remained since 1711 ; third, I have called 
attention to three contemporaneous references to this act, by 



different parties interested ; 1 and, fourth, I have produced, as 
the final test, a copy of the act, printed on a single leaf in 
the year 1713, — which copy, it is admitted, bears on its face 
conclusive evidence of having been impressed from the types 
of Bartholomew Green, then printer to the Governor and 
Council. 

Now, to invalidate the last of these concurrent evidences, 
which taken together impress me as decisive, my friend, here, 
asks you to believe that the act, of which we have a heliotype 
in our Proceedings, was surreptitiously printed. He does not 
suggest the motive, nor indicate with certainty the possible 
author of this deed. Perhaps he would have us believe that 
it was done by the printer's devil, to mark the end of an in- 
vidious rivalry with the recently dethroned Prince of Darkness, 
and to celebrate the absoluteness of his own less vindictive, 
though not always less provoking sway. However, I do not 
intend to carry my criticism beyond the sure support of incon- 
trovertible facts. I am even willing to admit that I cannot 
conceive how the critical reasons for questioning the authen- 
ticity of the printed copy could be more ably or thoroughly 
presented than they have been in the paper just read; and yet 
I feel confident they do not in your minds overcome the strong 
presumption arising from the mutually corroborating circum- 
stances which attest the genuineness of this copy, and from the 
absence of any conceivable motive for perpetrating the high- 
handed forgery which the alleged clandestine operations with 
Bartholomew Green's types would imply. 

I will not then attempt to follow the critical argument in 
detail, but content myself with calling your attention to a fact 
which, if clearly borne in mind, may serve to lessen the rigor 

1 Dr. Moore infers (Proc. Mass. Hist. Soc., vol. xxi. p. 88), that, because in two 
of these instances the petitioners pray that certain names may be "inserted in the 
act," the act had not been actually passed. But this is hardly a necessary infer- 
ence, since the act and an act in addition thereto would, by legal construction, 
constitute but one act ; and therefore it is not difficult to conceive that the " ad- 
visers " of the petitioners may have seen no impropriety in suggesting such 
" modification of, or addition to, a statute which was already a law of the land." 
Again, both of the petitioners describe the act either as " the late act," or " the 
act lately made ; " and one of them expressly prays that application may be made, 
" at the next session " of the General Court, to have her name inserted. Now what 
is the purpose of an act in addition, etc., but to make " modifications of, or addi- 
tions to," some statute already enacted ? And is there any rule limiting the 
operation of such an act so as to exclude the insertion of additional names ? 



of the rules by which the argument should be conducted. It 
is not pretended that the printed act was one of a series of acts 
published by authority ; but, on the contrary, it is assumed to 
have been printed, a year or two after its passage, probably to 
meet the demands of persons interested, who could not be so 
conveniently and cheaply supplied with manuscript copies. 

Although bills of attainder after the Revolution of 1688 
were considered public acts, — notwithstanding they had ceased 
to be of the nature of conclusive judgments, as formerly, but 
were in terms conditional and in their operation dependent 
upon some future act of the accused or some prospective 
judicial proceeding against him, — bills to reverse or set aside 
attainders were classed with private acts, both in Old and 
New England. 1 

Nothing, therefore, against the existence of such an act 
should be inferred from the fact that it does not appear in the 
first volume of the new edition of the Province Laws, since, 
according to the arrangement announced by the editors in their 
preface, 2 it properly belongs in the appendix, with other pri- 
vate acts, including the similar act of 1703. The title of this 
act does not, indeed, appear in the list of titles of private acts 
in that volume, and for the reasons I have heretofore given ; 3 
but upon Mr. Sainsbury's discovery of printed copies of the 
missing public acts of the same year, respecting which, in the 
matter of the Governor's assent, the record was similarly 
defective, it was immediately put in the list of titles of private 
acts reserved for the appendix, although it was too late to 
make the proper change in the printed volume. This was 
done in the hope that before the appendix should be printed, 
the certainty of the act's having been passed would be estab- 
lished ; which happened, to the satisfaction of the editors, 
when the printed copy in question, exactly corresponding with 
the manuscript copy at Salem, came to their knowledge. 

The fact that it was a private act should also cause us to 
treat with distrust any arguments against its genuineness 
founded upon discrepancies, in formal and typographical 

1 This was the case with the bills annulling the attainders of Lord Russell, 
Algernon Sidney, and Lady Alice Lisle (1 W. & M., 1st sess.) ; and with the pro- 
vincial act, referred to by Dr. Moore, reversing the attainder of Abigail Faulkner 
and others, passed in 1703. 

2 Page xxviii. s p r0 c. Mass. Hist. Soc, vol. xx. p. 290. 



6 

details, between this copy and the public acts printed in the 
regular series. There being no absolute or customary standard 
for private as well as for public acts, all those departures from 
uniformity which have been disclosed by the expert scrutiny 
of Dr. Moore are not shown to be less compatible with honesty 
on the part of the person or persons who printed or procured 
the printing of this copy, than is the absence of page-numbers, 
or than would be the presence of any peculiarity in the signa- 
ture, paper, or press-work. 

The same circumstance, moreover, weakens the force of 
another objection which Dr. Moore appears to think, if not 
insuperable, at least formidable ; and that is, that the act in 
question does not appear to have been laid before the ministers 
of the crown. Private acts, not being regularly printed, 
often failed, possibly sometimes on that account, to reach the 
Privy Council. This is evident from the demands occasionally 
made for exemplifications of such acts, upon the Governor or 
the Secretary of the Province, by the Lords of Trade or from 
the Council Board. Hence less importance should be attached 
to the failure to discover the mention of any particular private 
act in the Public Record Office. Besides, to insist on the 
importance of such a defect is to apply a rule which will 
equally unsettle the authenticity of several public acts. For 
instance, since no list of the acts of 1711 has been found in 
the British archives, — if, indeed, any such list was actually 
transmitted, — the proof of the passage of three of the public 
acts of that year must rest upon the existence of a printed 
copy or copies ; for this, meagre as it may seem, is all the evi- 
dence that we have of the fact that these acts really passed 
the Province seal. Now, if this evidence is inadmissible, the 
acts must fall; there being no record showing that the Gov- 
ernor assented to them, and neither the original bill nor the 
engrossment of either having been preserved. 

Yet Dr. Moore says these " are known to have been printed 
contemporaneously, in due course, and by regular official au- 
thority." He fails, however, to add that this knowledge is 
derived from precisely the same kind of evidence upon which 
I claim to found my knowledge of the passage of the act to 
reverse the attainders. And while he informs us that two of 
these acts are in the supplements of the edition of 1699, he 
modes tty refrains from telling us that only one perfect collec- 



tion of these supplements exists, which he, its fortunate pos- 
sessor, esteems an adequate reward for the expense of time 
and money, and for the great learning and ingenuity with 
which for many years his bibliographical researches for its 
completion were conducted. 

Surely our friend's comparison of the " status " of the act 
for reversing the attainders with that of other acts — for in- 
stance, the act for enforcing the order of June 12, 1711 — 
should have been extended beyond the bare declaration, in 
five words, with which he disposes of the former. The 
category of each is identical ; and if one is to be summarily 
" relegated to the limbo of imperfect legislation," he should 
show with all possible cogency of reasoning and fulness of 
illustration sufficient grounds for exempting the public act 
from the same fate. The difficulty of the task should rather 
have induced than excused the attempt; for we cannot be 
presumed to know what circumstance in favor of the pub- 
lic act overbalances, in his mind, the cumulative evidence 
afforded by the presence, legitimately, in a public office, of 
a contemporaneous copy of the private act in the hand- 
writing of the Secretary of the Province and by him indorsed 
" Copy," and minuted " examined," while not a scrap is 
referred to indicating that the public act was ever officially 
recognized. 

I shall say something more on this head presently, after I 
have considered the objections which Dr. Moore discovers on 
the face of the printed act. 

I am content to allow his criticisms upon the u style and 
method and literary treatment" of the act to pass for what 
they are worth, with the single observation, which I think he 
will approve, that of all literature in the world statute-books 
of the early part of the last century are the least likely to afford 
specimens of elegant diction, and that the frequent occurrence 
of acts to amend and explain those early statutes sufficiently 
attests the crudeness of the efforts of the average law-maker 
of that day, both in Old or New England, to frame his bills 
so as to express his intentions with ordinary certainty. 

Therefore, after remarking, in order to show its slight sig- 
nificance, that the omission of the Christian name of Good wife 
Corey was a piece of carelessness which, though unusual, can 
be capped by grosser instances even in the public acts of a 



8 

much later day, 1 I proceed to examine the more important 
internal evidence which Dr. Moore points out as tending to 
prove the spuriousness of the act. 

And, first, of the improbability of the passage of this act 
by the General Court, because the subject-matter belonged 
exclusively to the cognizance of Parliament. If Dr. Moore's 
views respecting the exclusive authority of Parliament to pass 
bills reversing attainders were well grounded — which I do 
not admit — he himself furnishes me with a conclusive answer 
in the present case, where he says : u Of course the fact that 
the General Court of Massachusetts had no right to pass such 
an act is no evidence that they refrained from the attempt," — 
an opinion admirably sustained by their passing, eight years 
before, the act to reverse the attainders of Abigail Faulkner 
and others, which our friend has printed, at length, in the 
appendix to his Notes on the History of Witchcraft, etc. It 
is therefore unnecessary to discuss the constitutionality of the 
act, which, by the way, was not questioned by the Solicitor- 
General of England when the act of 1703 was laid before him 
by command of the Lords of Trade, — a proceeding which 
Dr. Moore too hastily assumes could not have happened. 

Nor need we inquire what differences in the organic law of 
the respective provinces of New York and Massachusetts Bay, 
or in the political ideas which prevailed in those provinces, or 
what dissimilarity in the special circumstances of any given 
case, may at any time have induced the legislatures of the two 
provinces to differ in their action. But it may be observed 
that in both provinces at that time the supremacy of Parlia- 
ment was generally recognized. Its power, if not its right, 
to meddle, temporarily at least, with the internal affairs of 
either province, and even to disregard the qualified autonomy 
granted by the charter of Massachusetts, was not denied 
except by a very small party, constituting, however, the germ 
which slowly expanded into that resistless band of patriots 
which succeeded to power and glory in the Revolution. Nor 
should I omit to say that Dudley's change of opinion between 
the time of his signing the act of 1703 and the culmination of 
the movement for redressing the grievances of 1692 is not to 
be taken for granted. 

1 For instance, Prov. Laws, 1757-58, chap. 15; 1760-61, chap. 7; and 1768, 
chap. 16, § 1. 



Dr. Moore discovers another badge of spuriousness in the 
declaration, in the preamble of the act, that the survivors were 
"lying still under the like Sentence of the said Court and 
liable to have the same Executed upon them," which, he says, 
is false, inasmuch as the survivors had all been pardoned. Of 
course he does not mean to have us understand that the 
preamble expressly puts all the survivors in this category by 
the word " others," which, as the context shows, may have 
been intended to embrace only a few of the persons convicted 
and sentenced, — that is, "attainted." 

But how many pardons were actually granted? and where 
is the record evidence ? When were the charters of pardon 
pleaded ? or in what manner were they communicated after 
sentence? Has my friend any other evidence that pardons 
were granted than the declarations of Mather and Calef, and 
the representations of some of the petitioners for redress ? If 
he has, he ought to have adduced it to support his charge of 
falsehood. If he has not, we are bound to challenge the 
correctness of the inference he would force upon us, that all 
the survivors were pardoned. 

Of the witnesses I have referred to, Calef alone implies 
that all the surviving convicts were pardoned ; but the 
unsupported testimony of all of them would be entirely 
insufficient to prove that Governor Phips violated his instruc- 
tions, and set an example which was never followed by his 
successors. 

The pardon of felonies was a prerogative of the crown, 
which could only be delegated by express language ; and if 
pardons were granted by the Governor without such authority, 
the act was ultra vires. The authority has not been shown 
here ; nor is it to be presumed, for, although the provincial 
governors were usually authorized to grant pardons in all cases 
except treason and wilful murder, the authority could not be 
lawfully exercised in this province without special permission, 
in any case where the effect of the pardon would be to 
remit a forfeiture of more than <£10 in value. 1 Hutchinson, 
who understood the law relating to this branch of the pre- 
rogative, does not pretend that Phips pardoned any of the 
condemned. His words are : " Those the governor reprieved, 

1 See Proc. Mass. Hist. Soc, voi. xx. p. 148, and note. 



10 

for the King's mercy." 1 Undoubtedly, as Hutchinson says, the 
three persons 2 convicted at the January term of the Superior 
Court of Judicature at Salem were reprieved ; and some of 
the accused perhaps were pardoned, after a reprieve, by royal 
charter or mandate, as appears to have been the case with 
Abigail Faulkner, who had been attainted by the Court of 
Oyer and Terminer. But what evidence is there that all the 
other attainted persons were pardoned? And if they were 
not pardoned, the statement in the preamble remains unshaken 
by this attempt to impeach it. 3 

But Dr. Moore goes further, and declares that neither the 
printed act nor the manuscript copy at Salem " has any 
provision or provisions ' in favour of ' the sufferers or their 
representatives, 4 respecting their Estates.' " 

1 hardly know how to account for this assertion ; it is so 
directly at variance with what I had supposed every lawyer 
would frankly admit was the inseparable incident of attainders 
everywhere throughout the realm and the dominions of Eng- 
land. Would our friend have us believe that no forfeiture 
and no escheat followed the attainders of 1692 ? If so, here 
again I am compelled to confess my ignorance of his authorit}^, 
and to express my regret that he has passed over the subject 
so lightly in his paper. 

We must not lose sight of the fact that all who suffered the 
extreme penalty of the law in 1692 were condemned before 
the passage of the act " setting forth general privileges," by 
which escheats and forfeitures in cases of felony were abol- 
ished, and that this act was subsequently disallowed by the 
Privy Council because of this very clause which was declared 

i Vol. ii. p. 61. 

2 Dr. Moore's quotation from Hutchinson respecting the characters of these 
persons is liable, as separated by him from the context, to be misunderstood. The 
historian is not comparing them with the whole world, but with their companions. 
If they were thus, relatively, " the worst characters," they may still have been 
very decent people, as, in point of fact, I believe they were. See Proc. Mass. 
Hist. Soc, vol. xxi. p. 88, n. 3. 

3 The " pardon " which Calef refers to, and the " discharge " mentioned by 
others, were probably one and the same thing. Hutchinson gives us an idea of 
the blind deference paid to persons in authority, in the romantic incident which 
he relates of the release of a prisoner by the Governor's lady, who forged a 
warrant to accomplish her purpose with the prison-keeper. The story, which 
seems to be true, justifies the inference that the Governor was supposed to 
have unlimited authority in the matter of discharging prisoners. Hence, too, the 
peculiarity of the final jail-delivery on which Hutchinson briefly comments. 



11 

by them to be " repugnant to the laws of England." x That 
act was not made retroactive expressly or by necessary 
implication. 

Now, whatever may have been the practice in this Province 
after the passage of this act, and however convincing now 
appear to us the reasons that may be offered to show that a 
similar provision in the colonial " Body of Liberties " was 
operative under the new charter, it is certain that neither in 
Massachusetts nor at Whitehall did the notion at that time 
prevail that the "lands and heritages" of the condemned were 
exempt from forfeiture and escheat. Moreover, the act clearly 
contains nothing to prevent the " corruption of blood." 

For my own part, I know of no reason for doubting that 
the attainders following the judgments pronounced against 
the persons convicted of witchcraft by the Court of Oyer and 
Terminer not only involved the forfeiture of all lands and other 
corporeal hereditaments, " for a year and a day, and waste," 
but that the real estate of the condemned escheated to the 
king, who, by the tenure of " free and common socage," as of 
the royal " Manor of East Greenwich," under which all lands 
in Massachusetts were held, was the immediate lord. This 
escheat, moreover, though not strictly a forfeiture, was an 
absolute sequestration of the realty; and, notwithstanding no 
actual entry may have been made, upon information or other- 
wise, and no record of "office found " 2 remains, the estates of 
those who were attainted were, according to the maxim 
Nullum tempus occurrit regi, forever liable to seizure unless 
a pardon specially restoring the escheated lands should be 
granted by the crown, or unless the attainder should be 
removed by an act of the legislature. 

Until the enactment of a proper bill of reversal and res- 
titution, however, the blood of the condemned remained 
" corrupted," so that neither could he be the vehicle for the 
transmission of property by descent, nor his posterity take 
from him by inheritance. A pardon, whatever effect it might 
have had when granted with apt words and a special design 

1 See note to 1692-93, chap. 11 in vol. i. of Province Laws ; also Proc. Mass. 
Hist. Soc, vol. xx. p. 282, note f. 

2 " Where one is actually attainted, and his blood corrupted, and dies seized in 
fee, his lands cannot descend, but vest in the king without office found." Dane's 
Abr. ; and see 4 Coke's Rep. [58 a]. 



12 

to waive the escheat, could never avail to restore the for- 
feiture, or purge the blood of its " corruption." 

Citations might be multiplied almost infinitely to show the 
utter insufficiency of a pardon from the king himself to avoid 
the consequences of attainder. In the language of Black- 
stone, which Dr. Moore has quoted, " Nothing can restore or 
purify the blood when once corrupted," even if a pardon be 
allowed "after attainder, but the high and transcendent power 
of Parliament." 2 In this Province, of course, the General 
Court performed this parliamentary function. 

Nor did attainders operate solely to the injury of the con- 
demned and his kindred ; for as they invariably had relation 
"to the time of the fact committed," they avoided all sub- 
sequent conveyances and incumbrances of real estate by the 
condemned ; and as some of the diabolical practices alleged in 
the indictments in 1692 dated back many years, the attain- 
ders may have subverted the intervening titles of creditors 
and innocent purchasers. 

That these direful effects were understood and dreaded at 
that time is shown by the horrible nature of Giles Corey's 
punishment, who, to avoid the lasting and ruinous conse- 
quences of attainder, bravely accepted the awful alternative 
of the peine forte et dure. 

If, then, I am right in my opinion that the act in question 
was necessary (and it is not material whether this necessity 
really existed or not, if the legislature believed it did) to secure 
immunity from this terrible ban, the " quietus," as Dr. Moore 
calls it, which the last paragraph of the act contains (the 
protection of the executive officers concerned in the prose- 
cutions of the alleged witches), is by no means "the most 
important provision of the whole act." Nor is that exemp- 
tion from lawsuits, even, to be condemned as inequitable, if the 
purposes of the act in other respects were fully carried out, 
since the grant of full compensation to the sufferers would 
unquestionably be good ground for denying them any further 
remedy. 

I dismiss the topic of the declaration in the preamble with 
a brief recapitulation, to show more explicitly the complete 
antagonism between Dr. Moore's views and mine on this head. 

1 Commentaries, bk. iv. chap. xxxi. § 4. See also ibid., chap. xxvi. p. 337, 
and chap. xxix. p. 376. 






13 

While he detects in this declaration a falsehood and a badge 
of fraud, to me it offers strong internal evidence of genu- 
ineness, because the truth it expresses imparts to the act a 
raison d'etre and the color of necessity. He thinks that the 
" report" was the only legislative proceeding " in favour of" 
the " Estates " of the sufferers, while to me the report and 
the vote accepting it seem intended only to repair damage 
to the person and to chattels, and leave the " Estates " to be 
restored by the operation of a formal act, such as the one 
before us. 

While in this train of thought, and before proceeding to the 
consideration of details less relevant, I turn to a paragraph of 
Dr. Moore's which I wish could not be construed even into 
the semblance of unkindness. I cannot think my frank and 
genial friend would for a moment intentionally indulge in 
unwarrantably severe reflections upon the character or con- 
duct of the dead, to whom, in the performance of the sacred 
duty of critic or historiographer, he must perforce assign a 
place in his tableaux of the past. I am therefore willing to 
believe that it is my own perversity that detects a shade of 
injustice in his expressed opinion of the main purpose of " the 
wretched remnants" — of the families which were broken and 
scattered by the witch persecutions — in applying to the Gen- 
eral Court. Yet, nevertheless, his words affect me painfully. 
He surely is conscious of the fealty he owes, as a man and a 
scholar, to that imperative law which forbids the ascription 
of unworthy motives without clear and convincing evidence. 
Am I wrong when I believe that the touching words of those 
petitioners were sincere, and that the declaration of the chil- 
dren of Rebecca Nurse, that " the principal thing wherein 
we desire restitution " is " the removing . . . the reproach " 
which the name of their dear mother " and the name of her 
posterity lyes under," only echoed the general sentiment 
of the petitioners ? If I err herein, it is because I do not 
repudiate the charitable rule, and discredit their own pro- 
fessions. But where would be my warrant for repudiating 
that rule ? 

Why must I read between the lines something that shall 
falsify the professions of Francis Faulkner and nineteen others, 
who join in a petition to the General Court " that something 
may be publickly done to take off infamy from the names and 



14 

memory of those who have suffered, . . . that none of their sur- 
viving relations, nor their posterity, may suffer reproach upon 
that account " ? Why should I question the sincerity of the 
declaration of the Corey family that "that which is grieuous to 
us is that we are not only impoverished but also reproached, 
and so may be to all generations, and that wrongfully . . . 
unless something be done for the removal thereof" — or of 
the prayer of Isaac Estey and twenty-one others, that an 
act be passed to " restore the reputations to the posterity of the 
sufferers " ? 

When, in 1710, Estey said " this world can never make me 
any compensation," for the loss of his wife ; and the poor man, 
Ephraim Wildes, declared that though his loss was <£20 he 
was willing to take <£14, " considering our names may be 
repaired; " and William Hobbs offered to reduce his claim 
from £40 to <£10, for a like consideration ; and Mary Brad- 
bury's sons ask that the name of their good mother may be 
inserted in " the bill for taking off the attainder ; " 1 and Charles 
Burroughs, Philip English, John Tarbell, Abraham Foster, 
Elizabeth Johnson, Thomas Carrier, Samuel Ward well, and 
John and Joseph Parker make the same request ; and the 
Rev. Thomas Barnard and eleven other ministers join in pro- 
posing to the General Court to consider whether something 
may not and ought not to be publicly done " to clear the good 
name and reputation " of some of the sufferers, — was money 
all they were after? Was Rebekah Fowle feigning when she 
urged that the business of compensation be quickly disposed 
of, because " every discourse on this melancholy subject doth 
but give a fresh wound to my bleeding heart " ? I thank 
God that my respect for human nature, and my regard for 
what I consider the true historical method, alike forbid that 
I should believe it! 

The traditions preserved by the posterity of these good 

1 As for the compensation, what can be more unselfish than the request of 
the Bradbury s to the committee 1 — " We doubt not but some others might suffer 
more in their estates ; and it seems very just and reasonable that restitution be, 
in some measure, made as far as the case will bear; and, therefore, we would 
not discourage so just and good a design by any excessive demands, but rather 
comply with anything ivhich your Honers shall think meet to allow," etc. This was the 
general feeling, though there was some contention in the Burroughs family about 
the right of the widow to the lion's share, she having transferred all Burroughs's 
effects to another husband. 



15 

people and by the descendants of their neighbors corroborate 
the testimony of their faded, perhaps tear-stained, petitions 
still in the public files. Even in the pages of contemporary 
history, their pecuniary losses make an inconspicuous figure in 
the list of wrongs. The sums finally awarded to them seem 
miserably small and inadequate ; but there is evidence directly 
tending to show that even this pittance they themselves pro- 
posed, or cheerfully agreed to, as a full reparation of personal 
damages, in consideration of the additional favor of a reversal 
of the attainders. 

It seems to me impossible, after carefully pondering the 
whole story, not to feel that, more than the loss of lands and 
goods, the sufferers and survivors felt the loss of fellowship. 
Neighbors and kindred contemned them. Like the fruit of 
man's first disobedience, the curse laid upon them descended 
to their innocent posterity ; and in some instances the sen- 
tence of ecclesiastical excommunication had filled their cup of 
woe by formally consigning the revered parent or the tenderly 
loved child, husband, or wife to sure and eternal damnation. 
These circumstances were likely to impress the survivors with 
a sense of infamy and utter desolation, to which any material 
loss were but as the stolen purse to Othello. 

It is pleasant to know how fully the prayers of these petition- 
ers for a restoration of their good name have been answered. 
Their descendants to-day, filling their full share of places of 
honor and trust, 

" Hear no reproachful whispers on the wind," 

from the graves of their ancestors. The instigators of, and 
principal actors in, their persecution have sunk into compara- 
tive oblivion, or are remembered with aversion and contempt. 
On the other hand, almost the only sweet episodes in our mem- 
ory of men and manners at that early day are to be found in 
the accounts which have been transmitted to us of the for- 
titude and composure with which those victims of irresponsible 
power endured the insane atrocities inflicted upon them, and 
the glimpses we there obtain of the mutual affection between 
the sufferers and those near and dear to them. The tender 
offices which their friends and kindred performed for them 
while living, and the efforts to remove the stigma of condem- 
nation after they were dead, are as noble and disinterested 



16 

deeds as have ever been commemorated in history or in song. 
Nothing else has withstood the ravages of time that better 
serves to show the susceptibility of the human heart to ten- 
derest emotions, even amidst prevailing malevolence and su- 
perstition, and nowhere else can we perceive a ray of solace 
or of beauty in the painful details of that picture of early 
provincial life. 

Dr. Moore finds support for his theory of the spuriousness 
of this copy in its " long concealment," which is strengthened 
by the fact that it has no known duplicate, — " one solitar}? - 
printed copy." I confess I fail to see in these circumstances, 
taken separately or together, a foundation for a reasonable 
doubt ; nor do I believe that he will insist that there is any 
recognized rule that requires the determination of the authen- 
ticity of prints supposed to be " unique," to be postponed until 
all doubt is removed by the discovery of other copies, or until 
the individual history of each shall have been traced, step by 
step, to the first possessor. 

I venture to say that in his unrivalled collection of the Laws, 
and the Journals of the House of Representatives, of Massachu- 
setts, our friend here must have pages — yes, and volumes even 
— that cannot be duplicated, which I am sure are, in his esti- 
mation, not less valuable on that account, either to the bibli- 
ophilist, the lawyer, or the historian. Whether other copies of 
this impression may hereafter appear, or not, is of no conse- 
quence when we consider that the printers might, with little 
extra labor, have pulled a score or a hundred sheets while the 
form was in the press. And who shall say that they did not ? 

Neither, since the antiquity of the paper is conceded, and 
it clearly appears to be of the typography of Bartholomew 
Green, do I think it material to trace its history in all the 
obscure past. It may be of interest, however, to know that 
this particular copy was purchased at the sale of the collection 
of the late J. K. Wiggin, and that it bears the autograph sig- 
nature of Nathaniel Lambert, who in 1805 — when he appears 
to have signed it — was the ward, as well as the office -assist- 
ant of Ichabod Tucker, Clerk of the Courts and a successor 
of Stephen Sewall. This takes the paper back nearly half the 
period of its existence, through channels that apparently lead 
to no suspicious source. We may well question if it is possible 
to give as satisfactory an account of any of the numerous 



genuine early prints which every now and then are emerging 
from obscurity into the glare of great libraries or the more 
subdued light of collectors' cabinets. 

The argument founded on the absence of the bill and en- 
grossment from the rolls or archives becomes of still inferior 
force when we consider the numerous casualties, by fire and 
revolution, which all the papers, of equal age, now remaining 
in the Secretary's office, have escaped. The engrossments of 
three hundred and sixty-seven public acts and of seven private 
acts have disappeared from that office by some means or other, 
together with probably a still larger number of original bills. 
Now, if we are to understand Dr. Moore's quotation of a para- 
graph from a message of the House of Representatives to 
Governor Hutchinson in 1770 as offered in support of the 
proposition that the existence of every act is to be finally tested 
by comparison with the engrossment, I think I shall find no 
difficulty in getting his proposition excluded, on the ground 
that it is practically untenable. And if the quotation is not 
made for this purpose, I cannot see the relevancy or the force 
of the argument he would base upon it. It is true that all 
acts of the General Court were required by the charter to be 
under the Province seal ; and that they were engrossed on 
parchment, and signed by the executive, is an undeniable fact ; 
but to conclude, hence, that, if the parchment is lost or de- 
stroyed, the act is a nullity, would be asserting a novel doctrine 
and indicating a new method of repeal, the legality of which 
our friend should not allow to rest unsupported by unequivocal 
and overwhelming authority. Such a proposition, if established, 
would overturn the entire system of the common law, which 
is based upon lost statutes whose purport has been handed 
down, by tradition, in the courts. 

Now, coming to the record evidence, I begin with the re- 
mark that it is fortunate that the necessities of the case do not 
require me to explain all the obscurities of the proceedings of 
the General Court relating to the passage of this act. There 
being no Journal of the House of Representatives in existence 
for that period, and the files being imperfect, we are obliged to 
rely mainly upon the journals of the Governor and Council, 
commonly known as the General Court Records, for our knowl- 
edge of the doings of either branch. The originals of these 
journals were consumed, with the Court House, in 1747 ; and 



18 

the duplicate copies, subsequently made, do not exactly agree 
with each other in all respects, and may fail to contain some 
important passages originally entered. I give this as a pos- 
sible explanation of the absence of any express mention of 
the Governor's approval of certain acts in 1711, though, as to 
the act we are considering, I still adhere to the conjecture I 
have alread} 7- expressed. The anachronism which Dr. Moore 
notices in my statement that the act " had passed the several 
stages of legislation," will disappear if the time referred to by 
me is understood to be the time of the Secretary's "making up 
his records." I admit that my statement is obscure, and that 
my friend might very naturally have supposed that I was under 
the false impression that the passage to enactment preceded 
the adoption of the report. Such, however, is not the case ; 
and I fully concur in his criticism concerning the unsatisfac- 
toriness of the record. 

My statement was a deduction from my previous showing 
from the records, which I believe was full and accurate ; so 
there was, and is, no danger of being misled by it one way or 
the other ; nor, since Dr. Moore has so fully supplemented my 
work by his critical examination of the record entries, in his 
rejoinder, need we again go over the ground. 

One suggestion here, however, will perhaps help to reconcile 
any apparent discrepancy between the report and the act, and 
account for the twofold proceedings. 1 The act began in the 
Council, where the tradition concerning the exclusive right of 
the Representatives to originate money-bills may have oper- 
ated to the rejection of an}' clause requiring an appropriation. 
When the bill was returned from the House, it was not 
amended, or replaced by a new draught, but it was accom- 
panied by an order, proposed in the House, providing for the 
compensation asked for, as well as for the appointment of a 
joint committee to ascertain the names of the persons who 
were to receive it. If, as is probable, the Representatives felt 
this to be the best course to pursue under the circumstances, 
the Council certainly could not object to it, since it left their 
bill intact, except in regard to one feature in which the co- 
operation of the House was expected as being necessary to 
perfect the bill. 

1 It may at the same time furnish a satisfactory answer to Dr. Moore's ques- 
tion, " Why was it that an act was not drawn embracing all the recommendations 
of the committee 1 " etc. Proc. Mass. Hist. Soc, vol. xxi. p. 87. 



19 

The declaration of the committee that the claims of the 
petitioners were " moderated," or abated, cannot be refuted 
by comparing the report with the claims on file, until we have 
ascertained that the latter were the first and only demands 
presented ; which the very declaration renders doubtful, to say 
the least. 

Again, the mystery of the omission from the act, of the 
names of seven of the persons condemned is not cleared up — 
at least so as to throw the responsibility upon the legislature 
— by the letter of Nehemiah Jewett to Major Sewall, which 
Dr. Moore has given us in full ; because that letter bears the 
following indorsement, in Sewall's handwriting, " Mr Jewets 
note ab° y e psons condemned and not returned to ye Gener 11 
Court" This important memorandum, which is not printed 
by Woodward, leaves the question still open as to whether or 
not Jewett had any good reason for his supposition. Seeing 
that it was thus indecisive, I did not deem it worth while to 
comment upon it in my reply to Dr. Moore's Notes. 

On one point, however, Dr. Moore has clearly convicted me 
of the very fault that I had animadverted upon in the conduct 
of the committee. I charged them with carelessness in not 
reporting the Christian name of Goodwife Corey. This is 
inexcusable, and I thank my friend for the correction. But 
though the illustration fails in this instance, the charge is 
equally well sustained by their omission to report the name of 
Thomas Rich, — Goodwife Corey's son by a former marriage. 
On referring to my notes, I find that this was the only omission 
I had intended to point out; but in the hurry of composition 
I was in this particular led into a misinterpretation of my 
brief minutes, probably by noticing that the Christian name 
of the mother did not appear either in the act or in the com- 
mittee's list sent by Jewett to Sewall. 1 This mistake would 
not have occurred if I had made the slightest comparison of 
my notes with the report accepted by the legislature. 

Having thus pondered the evidence which the act itself 
affords, and examined into the precedent and contemporaneous 
circumstances which the records disclose, let us resume the 
consideration of the extraneous evidence which Dr. Moore 
adduces to confirm his assertion that no such act was passed. 

1 Jewett, who acted as chairman of the committee, was probably responsible 
for the omission in the act, as it is very likely that he drew the bill. 



20 

We are pointed to the fact, as significant, that the Rev. Israel 
Loring, in 1737, and Governor Belcher, in 1740, appear to 
have had no knowledge of any such act. But this, if it proves 
anything, proves too much. It shows that these worthies 
were as ignorant that the sufferers had received compensation 

— which nobody disputes — as that the attainders had been 
reversed. If the force of the blow demolishes the one, it 
recoils with equal force upon the other ; and either both the 
act and report are not affected by it, or they fall together. 

It is indeed unaccountable that legislative proceedings of 
such importance should so soon pass out of memory ; but the 
fact is, nevertheless, undeniable. And an instance even more 
striking than this is the utter failure of everybody concerned, 

— the committee, the several assemblies, and the petitioners 
themselves, — from 1708 to 1711, to take any notice of the act 
to reverse attainders, passed in 1703, which was only about 
five years before the proceedings were instituted that resulted 
in the passage of the present act. 1 Can our ingenious friend 
devise an explanation of this remarkable oversight that will 
not apply with equal or increased force to the forgetfulness 
manifested a generation later ? This is one of the mysteries 
which I confess myself incompetent to solve. I feel reasonably 
sure, however, that the committee of 1750 did discover the 
facts relative" to the compensation, and the reversal of the 
attainder. Hence it was — and not to justify a report that was 
never made, as my friend rashly concludes — that I expressed 
the opinion that it was their duty to report against reconsid- 
ering the claim : a duty from which the}^ ought not to have 
been deterred by any considerations of pity for the "mean, low, 
and abject circumstances" to which the unfortunate descend- 
ants of the condemned had been reduced, and which — to his 
credit, be it said — moved good Parson Loring to sympathy 
and to efforts in their behalf. 

If, after our friend shall have reviewed the subject in the 
aspect in which I now leave it, he shall not agree with me that 
the presumption that the act was regularly passed prevails 
over all the doubts and difficulties which, except for his 
shrewd insight and large knowledge, would perhaps never 
have obscured its title to recognition, I shall be disappointed ; 

1 See Dr. Moore's comment on this, in his first note in Proc. Mass. Hist. Soc., 
vol. xxi. p. 88. 



21 

but in such case there is no one, I am sure, more likely than 
he to discover some further evidence so decisive that this 
shall no longer remain an exception to our uniform agreement 
on historical questions. 

Meanwhile the inscription which my scholarly friend has 
suggested as proper to be placed on the cabinet wherein the 
"remains " of the act are deposited, must be for the present 
declined. As custodian of the relic, I feel that I ought to be 
better assured that it never had vitality before I entomb it 
under an epitaph. 

If any inscription were necessary, I think the following 
would be more appropriate : — 

Stat mole sua ; nullus esse potest ambigendi locus. 

This fragile leaf has survived five generations of men, to 
attest to the candid descendants of honorable ancestors, many 
of whose good deeds the world has forgotten — while the 
errors which they shared with their contemporaries have been 
loudly proclaimed — a singular instance of their justice and 
generosity, in that, while they were the first of all people to 
escape the thraldom of a superstition to which in Christian 
Europe alone it is estimated that more than nine millions of 
innocent human beings have been sacrificed, they were also 
the first to make pecuniary reparation to the descendants of 
those who had been ignorant^ condemned for witchcraft ; 
and then by this instrument they not only restored the 
forfeited estates of the victims, but rescued their names and 
the names of their posterity from perpetual infamy : AN ACT 

OF LEGISLATION, WITHOUT PRECEDENT OR PARALLEL, and 

which, though hitherto scarcely noticed, will grow more 
lustrous with the lapse of time. 

" So shines a good deed in a naughty world. " 



With the Compliments 

of the Author. 

Salem, JhvJl*/ <*3t) 188 ££ 




j 



¥ 



LIBRARY OF 



CONGRESS 



027 280 021 2 



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LIBRARY OF CONGRESS 



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